Why would a hospital and one of its physicians demand that a case against them be branded a malpractice case?   Why would they sue the trial court to force it to call the action a malpractice case?  A recent Nevada case provides the answer, and it has nothing to do with malpractice caps or insurance coverage.

Kelli Barrett gave her informed consent to implantation of an IUD.  A year after the procedure, the hospital sent her a letter stating that the device wasn’t approved by the FDA, because the manufacturer in Finland had shipped it to a Canadian pharmacy rather than to a U.S. pharmacy.

Kelli sued the hospital and physician, alleging malpractice and battery.  The defendants moved to dismiss because Kelli hadn’t filed an expert affidavit as required by Nevada statute in malpractice cases.  The trial court granted the motion as to the malpractice claim but not the battery claim.  So the defendants petitioned the Nevada Supreme Court for a writ of mandamus directing the trial court to dismiss the battery claim.

On July 28 the Nevada Supreme Court issued its decision, first giving its rationale for entertaining a mandamus petition challenging denial of a motion to dismiss: the substantive issue was one of first impression in Nevada, and it was likely to recur.

As to the merits, the court concluded that the affidavit requirement applies whenever a patient has, like Kelli, generally consented to the treatment and the issue is the scope of the consent and whether it was exceeded.  That issue requires expert opinion.   To avoid the affidavit requirement, Kelli would need to allege that the IUD procedure “completely lacked her consent.”

The case is Humboldt Gen. Hosp. v. The Sixth Judicial Court of the State of Nevada, No. 65562 (Nev., July 28, 2016).